Wahid Husain vs State of U.P.

Kundan Singh, J.—This appeal has been preferred against the judgment and order dated 31.8.79 passed by Sri Ramji Lal, the then I Vth Additional District and Sessions Judge, Bareilly, whereby Appellant Wahid Husain has been convicted u/s 376, I.P.C. and sentenced to undergo R.I. for 3 years in Sessions Trial No. 171 of 1978.

The prosecution case as set out in the F.I.R., briefly stated, was that on 30.10.1977 Km. Maskooran, daughter of Wazir Shah had gone to collect the groundnuts from the field of Umrai. At about 4.00 p.m. Umrai was constructing a ''mend'' of his field, while Smt. Maqboolan was cutting paddy in her field. The Appellant forcibly laid down Km. Maskooran on the ''mend'' of his sugarcane field and committed rape on her. On a hue and cry raised by the girl, Umrai and Maqboolan attracted to the scene of occurrence. The accused who was wearing a ''tahmad'' ran away from the place of occurrence. The girl was taken to her house. Badloo informant returned to his house in the evening, who was informed about the incident by the witnesses. Due to night he could not go to the police station. However, next morning he went to the police station Shahi, District Bareilly along with the victim Km. Maskooran where an F.I.R. was lodged by him at 9.30 a.m. A case was registered in the presence of S. I. Laxman Pushkaran (P.W. 5), who was entrusted to the investigation of the present case. He recorded the statements of the witnesses including the victim. He also inspected the spot and prepared a site plan. Later on the investigation was transferred to Ram Iqbal Singh, S.I., who after completing the remaining investigation submitted a charge-sheet in court against the accused.

Km. Maskooran was medically examined by Dr. Usha Agarwal (P.W. 6), who found her hymen torn recently at 3.00 and 6.00 O''clock position. In the opinion of the Doctor, an attempt was made for committing rape by penetrating the penis in the vagina and in the opinion of the Doctor, the rape was probably committed at 4.00 p.m. on 30.10.77. She was advised X-ray to determine the age of the victim. On the basis of the X-ray report, the Doctor was of the opinion that the victim was aged about 12 years.

The prosecution examined Smt. Maqboolan and Umrai besides the victim Km. Maskooran was eye-witnesses of the factum of incident. Badloo informant was examined as P.W. 1 to prove the first information report. Laxman Pushkaran, S.I. (P.W. 5), who investigated the case at the initial stage and Dr. Usha Agarwal (P.W. 6), who medically examined the victim were also examined as prosecution witnesses.

The Appellant denied the prosecution version and stated in his statement recorded u/s 313, Code of Criminal Procedure that, ''Chaukidar'' was a man of police. Maskooran and Baldeo were in collusion with ''Chaukidar''. He was standing on the patri of canal. Km. Maskooran victim took a sugarcane from his field for which he scolded her. She ran weeping and fell down on the ground. Thereafter, he went away to his house. He further stated that he has been falsely implicated in the present case due to enmity.

The learned Sessions Judge after going through the evidence on record held Appellant guilty of the offence charged with and accordingly he convicted and sentenced him as stated above.

The learned Counsel for the Appellant firstly contended that the victim was handicapped and when she took away a sugarcane from the field of the Appellant, she was scolded by the Appellant and she ran weeping and fell down on the ground. The probability is not excluded that some wood might have entered her vagina and the Appellant has been implicated in this present case due to suspicion. She was unable to answer the question. She was a girl of immature understanding and was not in a position to give answer correctly at the time of her deposition in the Court. She answered the questions by mere nodding her head. She was not administered oath as she was not in a position to give answers correctly.

I have gone through the evidence on record and found that the submission of the learned Counsel for the Appellant was untenable inasmuch as the victim knew the meaning of bad work (bura kaam) and she gave her answer in affirmative by way of nodding her head. Two witnesses, namely, Umrai and Smt. Maqboolan found the Appellant committing rape on the victim and they brought her to the house. On the basis of medical examination, it cannot be said that no rape was committed on the girl.

The learned Counsel for the Appellant next contended that the Appellant was about 12 years of age at the time of incident. The Appellant was arrested and taken into custody on 14.11.77. He applied for bail before the learned Sessions Judge alleging that he was a boy of 12 years of age. Learned Sessions Judge summoned the accused in court and found him to be between 14 and 16 years old. Considering the young age of the Appellant, the Incharge Sessions Judge granted bail to the Appellant vide his order dated 24.11.77. The Appellant gave out his age as 12 years at the time when he was examined u/s 313, Code of Criminal Procedure on 30.8.79. The observation of learned Sessions Judge about the age of Appellant was about 16 and 17. This statement of the Appellant was recorded about after two years of the incident. Thus, the Appellant was a lad below 16 years at the time of incident on 30.10.77. As such, he is entitled to the benefit of U.P. Children Act.

Learned Counsel further contended that as the Appellant gave out his age as 12 years, it was the duty of the prosecution to get him medically examined to establish the fact that on the date of incident, he was not a child. The observation of the learned Sessions Judge was that by appearance, the Appellant appeared to be aged about 16 or 17 years. This observation cannot be treated as an expert''s opinion. No importance or sanctity can be attached to this observation of the learned Sessions Judge, specially when the statement of the Appellant recorded u/s 131, Code of Criminal Procedure on the point of his age was that he was about 12 years old. Vis-a-vis that statement of the accused, it was a duty of the court to have his age determined by medical examination and it should have also directed State Counsel to produce documentary evidence of age, if any, available. As in the present case, the Appellant had given out a definite age as 12 years in his statement recorded u/s 313, Code of Criminal Procedure, it was not open to the court to have recorded a definite finding that on the date of incident the Appellant was not a child.

On the contrary, learned A.G.A. submitted that the Appellant has not proved that he was below 16 years of age at the time of incident. No evidence has been led by him at any stage and mere statement before the Sessions Judge, u/s 313. Code of Criminal Procedure was not sufficient to draw an inference that at the time of the incident he was a child and in support of that contention, he relied on a Supreme Court decision in the caseState of Haryana v. Balwant Singh 1993 SCC 251, wherein the judgment of the High Court was reversed holding that the High Court found the accused below 16 years only on the basis of the age disclosed by the accused recorded u/s 313, Code of Criminal Procedure. In that context the relevant observation of the Supreme Court was as under:

Admittedly, neither before the committal court nor before the trial court, no plea was raised on behalf of the Respondent that he was a child and that he should not have been committed by the Magistrate and thereafter tried by the Sessions Court and that he ought to have been dealt with only by the Court of Juveniles. When it is not the case of the Respondent that he was a child both before the committal court as well as before the trial court, it is very surprising that the High Court, based merely on the entry made in Section 313, Code of Criminal Procedure statement mentioning the age of the Respondent as 17 has concluded that the Respondent was a ''child'' within the definition of the Act on the date of occurrence though there was no other material for that conclusion. This observation of the High Court, in our considered view, cannot be sustained either in law or on facts. Hence, we set aside that finding of the High Court that the Respondent was a child.

I have given my anxious thought to the submission made on behalf of the parties. It is true that neither party has led any evidence to prove that the Appellant was or was not a child on the date of incident. In the present case, there are circumstances in which the probability cannot be excluded to reach at a conclusion that the Appellant was a child below 16 years at the time of incident. The learned Counsel for the Appellant drew attention of the court to the order dated 24.11.77 of the learned Incharge Sessions Judge wherein it was mentioned that the accused was present in the court and by appearance he appeared to be between 14 and 16 years of age and he was enlarged on bail solely on that consideration. Secondly, the Appellant gave out his age as 12 years at the time when he was examined u/s 313, Code of Criminal Procedure on 30.8.79 while the incident took place on 30.10.77. This time the observation of the learned Sessions Judge was that the Appellant appeared to be a lad of 16 or 17 years. Learned trial Judge had also taken notice of the immature age of Appellant while awarding him the sentence of 3 years R.I. only. In the situation alike here, when the court finds the age given out by the accused under-estimate or over-estimate, the court itself should form its own estimate and also mention it is the record. If the accused is charged with an offence punishable with death and then court considers the age given by him to be under-estimate, or an over-estimate, it may order medical examination of the accused about his age and should direct the State Counsel to produce documentary evidence of his age, if any, is available, as is emphasized in Rule 50 of the General Rules (Criminal).

Similar view has again been expressed in Court''s Circular Order No. 52/VII-B-32, dated 28.9.1954, which is reproduced hereunder:

In the first instance, each accused is in a murder case at the time of his examination by the Magistrate or by the Sessions Judge should be specifically asked as to what his age is and that age should be recorded. If the Magistrate or Sessions Judge suspects that the age stated by the accused, having recorded to the general appearance of the accused or some other reason, has not been correctly stated it is either an over estimate or under estimate then the Magistrate or the Sessions Judge should note his own estimate and if he considers it necessary or medical examination of the accused about his age. If any documentary evidence on the point of age is readily available, the prosecution should be asked to produce.

In the present case, the trial Judge has noted his own estimate about the age of the Appellant at the time when he was examined u/s 313, Code of Criminal Procedure. Since the age of the Appellant was on the border line of 16 years, just to decide the question whether the Appellant was or was not entitled to the benefit of the provision of the Children Act, the duty was cast on the learned Sessions Judge to have the accused medically examined to arrive at a correct conclusion about the exact age of the Appellant, which to my dismay, he has failed to discharge. As the Appellant was examined about 2 years after the incident and at that time his age was 16 or 17 years, the only consideration would be that he was below 16 years of age at the time of incident.

In the present case, the Appellant was taken into custody on 19.9.95 during pendency of the appeal in pursuance of the order of the court and was sent to jail on 20.9.95. Later on, he was granted bail by this Court on 15.3.96. Thus, he had remained in jail for about 6 months. In the case of Jayendra and another Vs. State of Uttar Pradesh, , the Supreme Court considered the facts and circumstances on record and held that Jayendra was a child within the meaning of the provisions of U.P. Children Act, 1951 on the date of the offence. Section 28 of the aforesaid Act says notwithstanding anything contrary in any law, no Court shall sentence a child to imprisonment for life or to any term of imprisonment.

In the facts and circumstances discussed above, the Appellant was a child below 16 years within the meaning u/s 2(4) of U.P. Children Act and since the Appellant has now crossed the age of 18 years, be cannot be sent to approved school.

Accordingly, the appeal succeeds and is allowed in part. The conviction of the Appellant awarded by the court below is affirmed but he shall not be sent to jail to serve out the sentence of imprisonment inflicted upon him. The Appellant is on bail. His bail bonds are cancelled and sureties are discharged.